Camargo v. Commissioner of Social Security

Filing 27

ORDER signed by Magistrate Judge Dennis M. Cota on 9/3/2021 GRANTING 24 Motion for Attorney Fees, subject to reasonable reduction, and AWARDING Plaintiff an aggregate amount of $9,986.97, in fees and expenses under the EAJA, payable by the Commissioner to Plaintiff. (Huang, H)

Case 2:17-cv-01733-DMC Document 27 Filed 09/07/21 Page 1 of 9
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SUSAN CAMARGO,

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Plaintiff,

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No. 2:17-CV-1733-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brought this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Final judgement was entered on December 18, 2018. See ECF No. 19. Pending before the Court

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is Plaintiff’s motion for an award of attorney’s fees and costs in the amount of $10,949.54 under

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the Equal Access to Justice Act (EAJA). See ECF No. 20. Also before the Court is Plaintiff’s

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supplemental motion for an additional $687.46 under the EAJA reflecting 3.41 hours of attorney

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time spent litigating fees. See ECF No. 24. The Commissioner has filed an opposition to

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Plaintiff’s original motion, see ECF No. 22, but has not opposed Plaintiff’s supplemental motion.

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I. PROCEDURAL HISTORY
Following briefing on the merits, the Court remanded the matter for further
administrative proceedings. See ECF No. 18. In doing so, the Court stated:
In her motion for summary judgment, plaintiff argues the
ALJ erred by ignoring the opinions of treating physiatrist D. Michael
Hembd, M.D.
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According to plaintiff, the ALJ failed to account for the
opinions of Dr. Hembd, as expressed in the record at CAR 279, 393, 397,
476. Specifically, plaintiff contends the ALJ ignored Dr. Hembd’s
opinion that plaintiff cannot “work more than four hours per day and
sitting, standing, and walking less than one third of the workday.”
The record at CAR 279 and 397 consists of the same onepage report dated March 19, 2012, detailing Dr. Hembd’s review of
diagnostic studies. As reported by Dr. Hembd, “MRI did not demonstrate
evidence of significant disk pathology.” CAR 279, 397. The doctor’s
recommended plain of care was to apply heat and ice, engage in
stretching, and use a TENS unit. See id. Dr. Hembd concluded plaintiff
could return to work with restrictions to no lifting and no more than a
four-hour workday. See id.
The record at CAR 393 consists of a largely illegible onepage “Physician Assessment of Patient Level of Impairment” form dated
January 19, 2012, signed by Dr. Hembd. The form details a lift/carry
restriction of a maximum of 25 pounds. See CAR 393. The form also
indicates the doctor noted as “Other Impairments” the following: “4
hours/day (limited by stamina, [illegible] strain).” Id.
The record at CAR 476 consists of a separate one-page
“Physician Assessment of Patient Level of Impairment” form completed
following an office visit on August 1, 2012. Dr. Hembd indicates plaintiff
can perform up to 33% of her work shift performing activities such as
bending, twisting, lifting, carrying, standing, walking, and sitting. See id.
Plaintiff was restricted to never kneeling, squatting, or climbing. See id.
The doctor restricted plaintiff to lifting and carrying no more than 35
pounds. See id. Finally, Dr. Hembd indicated for “Other Impairments”
the following: “occ. stoop.” Id.
These records describe Dr. Hembd’s opinions regarding
plaintiff’s capabilities through August 2012, which is well before the
alleged onset date of July 11, 2013. This does not mean, however, as
defendant argues, the ALJ may completely ignore such evidence, as was
the case here. While defendant correctly notes medical opinions that predate the alleged onset of disability are of limited relevance, see Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008); see
also Burkhart v. Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988), the
Ninth Circuit has not ruled such opinions may be ignored. In the cases
cited by defendant, the ALJs rejected reports pre-dating the alleged onset
dates only after actually considering and discussing the reports.
Defendant’s argument would be persuasive had the ALJ in this case
considered Dr. Hembd’s opinions and rejected them because, as opinions
pre-dating the alleged onset date, they provide limited evidentiary value
with respect to the time period at issue. That, however, did not occur.
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This court agrees with Judge Brennan who observed “medical opinions are
not per se irrelevant merely because they predate the disability onset
date[.]” Yanes v. Berryhill, No. 2:16-CV-0518-EFB (E.D. Cal. 2017); see
also 20 C.F.R. § 404.1527(b), (c) (Commissioner’s regulations requiring
all medical evidence be considered).
Similarly, the court rejects defendant’s argument the ALJ
did not err in ignoring Dr. Hembd’s opinions because they were rendered
in the context of California worker’s compensation terminology. While
the cases cited by defendant indicate such opinions are not controlling
because they arise in a different legal context, the cases do not stand for
the proposition such evidence may be completely ignored. See 20 C.F.R.
§ 404.1527(b), (c); see also Lester, 81 F.3d at 832 (“The purpose for
which medical reports are obtained does not provide a legitimate basis for
rejecting them”). Again, had the ALJ discussed Dr. Hembd’s opinions
and afforded them less weight because they were offered in relation to a
worker’s compensation claim, defendant’s argument would be persuasive.
But, again, that did not happen in this case.
Defendant argues the court should affirm the ALJ’s silent
disregard of Dr. Hembd’s reports because, on weighing them with the
other evidence of record, they are “neither significant nor probative of
Plaintiff’s limitations during the relevant time period.” Defendant
supports this argument with reference to evidence showing plaintiff’s
impairments improved with continued conservative treatment and
medication. Defendant also references the various other medical opinions
the ALJ did consider and which support the ALJ’s ultimate disability
determination. The court, however, declines defendant’s invitation to do
in the context of an action for judicial review what the Commissioner
should have done in the first instance, that is consider all the medical
evidence of record, weigh that evidence together, and render a decision
after doing so. Defendant may very well be correct that Dr. Hembd’s
opinions do not change the outcome of the case. As defendant has noted
in numerous other cases, however, it would be wholly improper for this
court to substitute its own judgment for the Commissioner’s.

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ECF No. 18.

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II. DISCUSSION
Because this court issued a remand pursuant to sentence four of 42 U.S.C.

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§ 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562

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(9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the

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Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s)

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on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 569. No

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presumption arises that the Commissioner’s position was not substantially justified simply

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because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 1988).

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The Commissioner’s position is substantially justified if there is a genuine dispute. See Pierce v.
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Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is on the

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government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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In determining substantial justification, the court reviews both the underlying

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governmental action being defended in the litigation and the positions taken by the government

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in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on

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other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). For the government’s position to be

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considered substantially justified, however, it must establish substantial justification for both the

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position it took at the agency level as well as the position it took in the district court. See Kali v.

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Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Where, however, the underlying government action

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was not substantially justified, it is unnecessary to determine whether the government’s litigation

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position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988).

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“The nature and scope of the ALJ’s legal errors are material in determining whether the

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Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103

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F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). If there is no reasonable basis in law

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and fact for the government’s position with respect to the issues on which the court based its

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determination, the government’s position is not “substantially justified” and an award of EAJA

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fees is warranted. See Flores, 42 F.3d at 569-71. A strong indication the government’s position

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was not substantially justified is a court’s “holding that the agency’s decision . . . was

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unsupported by substantial evidence. . . .” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

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Under the EAJA, the court may award “reasonable attorney’s fees,” which are set

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at the market rate. See 28 U.S.C. § 2412(d)(2)(A). The party seeking an award under the EAJA

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bears the burden of establishing the fees requested are reasonable. See Hensley v. Eckerhart, 461

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U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998); see also 28 U.S.C. §

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2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the court

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an application for fees and other expenses which shows . . . the amount sought, including an

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itemized statement from any attorney . . . stating the actual time expended”). The court has an

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independent duty to review the evidence and determine the reasonableness of the fees requested.

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See Hensley, 461 U.S. at 433, 436-47. Finally, fees awarded under the EAJA are payable directly
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to the client, not counsel. See Astrue v. Ratliff, 130 S.Ct. 2521 (2010).
In opposition to Plaintiff’s original motion for EAJA fees and expenses, the

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Commissioner argues: (1) the government’s position was substantially justified; and (2) the fees

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requested are unreasonable.

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A.

Justification for the Government’s Position

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According to the Commissioner:

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Here, an award of fees is not appropriate. The Court concluded that
the ALJ erred by failing to address Dr. Hembd’s opinions regarding
Plaintiff’s capabilities (CR 18 at 7-8). The ALJ, however, specifically
noted that “no treating physician has provided a medical source statement
as of the amended alleged onset date” (AR 26). Dr. Hembd’s opinions
were issued about 1 to 1 1/2 years prior to Plaintiff’s amended alleged
onset date (AR 278, 393, 397, 475). The ALJ, therefore, found that
opinions pre-dating Plaintiff’s alleged onset of disability date – i.e.
Dr. Hembd’s opinions - were not relevant to whether Plaintiff was
disabled between July 11, 2013 through March 3, 2016, the date of the
decision. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1193 (9th
Cir. 2004) (“the Commissioner’s findings are upheld if supported by
inferences reasonably drawn from the record”). The ALJ’s finding was
consistent with agency policy that relevant medical evidence begins at the
alleged onset of disability date. See e.g. 20 C.F.R. § 404.1512(b)(ii)
(indicates that if a claimant states that her disability began less than 12
months before her application date, the agency only develops the medical
record back to the alleged onset date). The ALJ’s finding was also
consistent with Ninth Circuit case law that “[m]edical opinions that
predate the alleged onset of disability are of limited relevance.” See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.
2008) (citing Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989)).
With respect to the facts of this case, the ALJ’s finding was
reasonable because Dr. Hembd’s opinions, rendered shortly after
Plaintiff’s work-related injury, were based on evidence that pre-dated
Plaintiff’s alleged disability onset date, such as Plaintiff’s lack of any
improvement at that time (AR 472). See Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (“If the record would support more than
one rational interpretation, we defer to the ALJ’s decision”). During the
relevant period, Plaintiff reported that treatment improved her symptoms
(e.g. AR 951, 956, 960, 964, 990, 995, 999, 1154, 1183, 1188, 1209,
1214), and two State agency physicians opined that Plaintiff could
perform a range of light to medium work (AR 61-63, 74-75). The ALJ
gave great weight to these opinions, which were consistent with the
evidence during the relevant time period (AR 27). See Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ((“The opinions of nontreating or non-examining physicians may also serve as substantial
evidence when the opinions are consistent with independent clinical
findings or other evidence in the record”). (footnote omitted).

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Case 2:17-cv-01733-DMC Document 27 Filed 09/07/21 Page 6 of 9
Because the ALJ’s findings had a reasonable basis in law and in
fact, the government’s defense of those findings in this Court likewise had
a reasonable basis in law and fact. Indeed, the deferential substantial
evidence standard of review directs a reviewing court to defer to the
ALJ’s finding even when another interpretation of the evidence is
possible. See Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 690 (9th
Cir. 2009) (substantial evidence “is a highly deferential standard of
review”); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“[w]here
evidence is susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld”). Therefore, it was reasonable for
the government to defend the ALJ’s finding that opinions predating
Plaintiff’s alleged onset date - Dr. Hembd’s opinions - were not relevant
to the disability determination, even if this Court ultimately concluded that
the ALJ was wrong. See Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir.
2013) (“this circuit has never stated that every time this court reverses and
remands the ALJ’s decision for lack of substantial evidence the claimant
should be awarded attorney’s fees”).5 This Court should deny Plaintiff’s
motion and decline to award fees.

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ECF No. 22, pgs. 3-5.
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The Court’s conclusion that the Commissioner’s position was not substantially

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justified is, in large part, driven by the Commissioner’s own statement in opposition to the current

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motion. In particular, the Commissioner acknowledges: “The Court concluded that the ALJ erred

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by failing to address Dr. Hembd’s opinions regarding Plaintiff’s capabilities (CR 18 at 7-8).” Id.

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at 3. Despite the Commissioner’s attempt to re-litigate the merits of the case, the Court’s

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conclusion remains as the Commissioner accurately states --- the Administrative Law Judge

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failed to consider relevant medical evidence in a claim for disability benefits. The Court does not

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consider whether the government’s position in the litigation before it was justified because the

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government’s position in the underlying agency action by the Administrative Law Judge was not

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justified.

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B.

Reasonableness of Fees Requested

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The Commissioner asserts:

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Here, Plaintiff requests $10,929.44 for litigating this case (CR 21-2
at 2-3). Plaintiff’s request for 55 attorney hours to litigate this routine, one
issue, case is unreasonable.6 Routine social security cases are typically
and reasonably litigated in 15 to 30 hours, not 55 hours. See Afanador v.
Sullivan, 809 F. Supp. 61, 65 (N.D. Cal. 1992) (without analysis, court
found 22.3 hours reasonable); Vanover v. Chater, 946 F.Supp. 744 (E.D.
Mo. 1996) (routine Social Security cases usually require between fifteen
and twenty hours); Blaisdell v. Sec’y of Health and Hum. Serv., 623 F.2d
973, 976 (D. Me. 1985) (22.8 hours considered appropriate); Lanter v.

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Heckler, 656 F. Supp. 19, 21 (S.D. Ohio 1986) (20 to 30 hours a
reasonable expenditure of time for social security cases). While the
administrative transcript was long, the case involved typical medical
impairments (i.e. back and knee impairments), only one issue – a treating
physician’s opinion, this was a routine issue in social security cases, and
Plaintiff’s counsel is experienced in litigating social security matters7. See
Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). (reasonableness
determined by such factors as the novelty and difficulty of the questions
involved, the skill requisite to perform the legal service properly, and the
experience, reputation, and ability of the attorney); Nugent v. Massanari,
2002 WL 356656, at *3 (N.D. Cal. Feb. 28, 2002) (reducing EAJA
petition for non-complex legal issues); Silva v. Bowen, 658 F.Supp. 72, 73
(E.D. Pa. 1987) (the court reduced claimed hours as excessive where the
social security disability case was not “particularly complex” and did not
raise “novel issues”); see also Reyna v. Astrue, 548 Fed. Appx. 404 (9th
Cir. 2013) (affirming a $5,555.15 reduction in EAJA fees (from 47.25
hours to 28 hours)). . . .

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ECF No. 22, pgs. 6-7.

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The Commissioner specifically objects to: (1) 31.5 hours to review and summarize
the record; and (2) 0.51 hours related to clerical tasks. See id. at 7-8. The Commissioner
proposes that and award of $8,226.52 in fees and $20.10 in expenses would be appropriate. See
id. at 8.

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The Commissioner contends 31.5 hours to review and summarize the record in a
single-issue case is unreasonable for an experienced social security specialist, such as Plaintiff’s
counsel. See ECF No. 22, pg. 7. The Commissioner proposes that 18.5 hours is reasonable in
this case. See id.

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Reviewing and Summarizing the Record

As the Commissioner acknowledges, the record in this case consists of
approximately 1,400 pages. The Commissioner’s challenge to 31.5 hours spent reviewing this
record amount to an objection to a rate of 1.35 minutes per page. The Commissioner proposes
18.5 hours for this task, amounting to a rate of 0.79 minutes per page. Plaintiff’s counsel bills as
a rate of about $200.00 per hour.1 The Court finds a reasonable rate is somewhere in the middle –

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Over the course of billing for this case, counsel’s rate changed from $196.79 per
hour to $201.60 per hour. See e.g. ECF No. 21-2.
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1 minute per page.2 At one minute per page, it should take about 23.33 hours to review a 1,400-

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page record. Thus, the difference between the number of hours requested and the number of

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hours expected is 8.17 hours. It could be reasonably expected that this amount of time would be

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less for an attorney who specializes in social security appeals and where the record consists of

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duplicative documents. In any event, the Court will exercise its discretion to give counsel the

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benefit of any uncertainty and presume that counsel spent 23.33 hours to review the record in this

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case – 8.17 hours fewer than claimed. At a rate of $200.00 per hour, the Court will reduce the

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award of EAJA fees to Plaintiff by $1,634.00 (8.17 hours at $200.00 per hour).

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2.

Clerical Work

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The Commissioner argues 0.51 should disallowed because the time was spent on

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clerical work. See ECF No. 22, pgs. 7-8. Specifically, the Commissioner challenges counsel’s

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time entries for 8-21-2017 (0.03 hours), 9-18-2017 (0.03 hours), 9-25-2017 (0.05 hours), 9-4-

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2018 (0.10 hours), and “12/18” (0.30 hours). Id. at 7. The Court agrees as to entries for August

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21, 2017 (0.03 hours) and September 25, 2017 (0.05 hours), for a total of 0.08 hours in clerical

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tasks performed and billed by counsel. At a rate of $200.00 per hour, the Court will further

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reduce the EAJA award by $16.00.

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III. CONCLUSION

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In her original request, Plaintiff asks for an award of $10,949.54 under the EAJA.

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Considering the Commissioner’s opposition, the Court grants this request subject to a reduction in

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the amount of $1,650.00, for a total award on Plaintiff’s original request of $9,299.51. The Court

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also awards $687.46 on Plaintiff’s unopposed supplemental request for fees associated with post-

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judgment litigation on EAJA fees. The Court’s total award of fees and expenses under the EAJA

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is $9,986.97.

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This rate is consistent with the rate for review of records in capital habeas cases
established by the Judicial Council of the Ninth Circuit.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion, ECF No. 20, and supplemental motion, ECF No. 24, for

fees and expenses under the EAJA are granted, subject to reasonable reduction; and
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Plaintiff is awarded an aggregate amount of $9,986.97, in fees and

expenses under the EAJA, payable by the Commissioner to Plaintiff.

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Dated: September 3, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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